Wessington Springs herald. (Wessington Springs, Aurora County, Dakota [S.D.]) 1883-1891, 1887-12-30

this branch Of the case is ertilizing Compan.
vs: Hyde Park t97 U. 81 659, 667l, also decided
after the adoption of the fourteenth amend
IN ordinance Of the village Of Hy she PARK
Cook County, Illinois, passed under Legislative
authority. -forbtdding any person from trans
offensive or unwholesome matter. or from main
tanning or carrying ON an offensive or unwhole
some business or establishments within its lin
pense and under authority expressly conferred
by its charter, located its works at particular
point IN the country. Besides. the charter O.
not interfere with parties engaged in transport
ing animal matter from Chicago. or from manu-
featuring ,g il into fertilizer or other chemical
question operated to destroy the business Of the
company and seriously to impair the value Of
| the property.
-As. however, its business had become nui-
| sance to the community in which it was con-
Quoted, producing discomfort and often sickness
Of Of ee Sa as sea
der Legislative sanction, to protect the public
health against such nuisance. It said:
a.. We. cannot doubt that the police power Of
an etfectual remedy. That power belonged to
the States when the Federal Constitution was
1 IT,,
all have it now. 1t extends to the entire prop
| erty and business within their local jurisdic-
ton. Both are subject TO it in all proper cases.
every one shall SO use his own as not to wrong
| and injure another. To regulate and abaue
nuisances is one of its ordinary functions
POOR PRECEDENT CITED.
1t is supposed by counsel that the doctrine
| for which they contend is sustained by Pun
pelly vs. Green Bay Company I13 Wall. 1851
| but in that view We do not concur. That was
an action for the recovery of damages for the
overfowing of the plaintiff land by water, re-
snlting from the construction of u dam across n
was that the dam constituted a part Of the sys-
tom adopted by the State for improving the
navigation of Fox and Wisconsin Rivers. No
statute made provision for compromising. the
plaintiff, or others similarly situated, for dam
ages to their lands, and it was commended that
MS the damages of which he complained were
only the result OF the improvement under the
sanction of the State of a Aavigable stream, he
was not entitled to compensation from the
State or y its agents The case, therefore, in
the plaintiffs land in the manner stated, and to
such an extent that it became practically unfit
to be used. WAS taking Of property within the
Niding that the property Of no person shall be
taken for public use without just compensation
therefor.
"This court said it would be very curious
and unsatisfactory result We're it held that
IL the Government refrains from the abso-
lutte conversion of real property to the uses Of
ntiict irreparable and permanent injury to any
extent; Gun, in effect, subject it to total de-
struction without making any compensation
because in the narrowest sense of that word
it is not taken for the public use. Such con-
struction would pervert the constitutional pro-
vision into u restriction upon the rights of the
citizen, as those rights stood ut tho common
law, instend of tho Government, and make it
an authority for the invasion of private rights
under the preteXt of the public good, which
had no warrant in the laws or practices of our
ancestors
These principles have no application to the
case under consideration. The question in
Pumpelly VS.. Green Bay Company arose under
the States power of eminent domain while the
question now before us arises under what are
strictly the police powers of State, exerted i'll
legitimate manner for the protection of the
people against the evils of incompetence and
it's attendant evils of disorder. disease, pauper-
ism, and crime.
"Pumpellys case, MS this court said in Trans
Dortation Company VS.. Chicago l99 U. S., 642)
was an extreme qualification of the doctrine
universally held that acts done in the proper
exercise of governmental powers and not di-
rectly. encroaching upon private property,
though these consequences may impairits use,
do not constitute IL taking within the meaning
OF the constitutional provision, and do not en-
title the owner of such property to compensa-
ton from the State or its agent, or give him any
right of action 1t was, Ms this court said, a
case in which there was Il permanent flooding
Of private property. n physical invasion Of the
real estate of the private owner and practical
WIS in effect required to be devoted to the ben
eft OF the public, and consequently he was en-
titled to compensation
"As already stated, the present case must be
governed by principles that do not involve tho
power of eminent domain, in the exercise of
which property may not be taken for public
use without compensation Prohibiting simply
the use OF property for specific purposes
that are declared by valid legislation to be in
furious to the health morals. or safety of the
community cannot in any Just sense be deemed
q taking nor an appropriation of property for
! the public benefit. Such legislation docs not
disturb tho owner in the use of his property for
lawful purposes, but is only q declaration by
the State That its use by any one for certain
forbidden purposes is prejudicial to the public
interests. Nor can legislation of that character
come within the fourteenth amendment in any
CASE unless it is apparent that its real object
is not to protect the community or to promote
the general well-being but, under the guise of
police regulation to deprive tho owner of his
liberty and property without due process OF
law.
NOT ENTITLED TO COMPENSATION.
"The power which the States unique stionnbly
have of prohibiting such use by individuals OF
their property as will be prejudicial to tho
health. the morals, or the sufety of the public
organized society could not be, burdened with
the condition that the State must compensate
such individual owners for pecuniary losses
they sustain by reason of their not being per
nitted by a noxious use of their property to in
f1ict injury upon the community of which they
form part The exercise of the police power
u
public nuisance, or the prohibition of it's use in
particular way whereby its value becomes de-
preciated, is very different from taking property
for public use or from depriving person Of his
property without due process of law. In the one
case nuisance only nDnted; i'll tho other,
unofending property is taken away from an i'll
nOcGnt owner.
1t is true tint when the defendants in these
cases purchased or .rectcd their breweres the
laws of the State did loJ forbid the manufact-
ure of Intoxicating liquors. But the State did
not thereby give any nssurn' ce. or come under
an obligation, that its legislation upon that
| subject would remain un, hanged. Indeed, rs
was said in Stone vs.. Mississippi 1Ol L. 81. the
| supervision of the public health and the public
morals is u governmental power, continuing
i'll its nature and to be dcnlt with us the
| special eNigencies OF the moment NAV 10 1uire
and that for this purpose the lurgest le, isIu-
tive discretion is allowed and tho discretion
cannot be purted with any more than the ow-
or itself
so in Beer Company VS.. Massachusetts l97
U. s., 32):
| 81" IF the public safety or the public morals
| require the discontinuance of any manufacture
or traffic, the hand of the Legislature cannot
| be stayed from providing for its discont;uance
! any incidental Inconvenience which indi-
/ vidunls or corporations may suffer.
THE THlKrEENrH Sltt TIoS.
1T romans to consider c. ,,i, questions re-
lating particularly to the tliglee,iln section of
the act of 1855 That section is us 10 .ows:
| :, Section IL. All places where Intoxicating
| liquors are manufactured, sold, bHrtereu or